|
Forum Rules | Firearms Safety | Firearms Photos | Links | Library | Lost Password | Email Changes |
Register | FAQ | Calendar | Today's Posts | Search |
|
Thread Tools | Search this Thread |
November 23, 2009, 06:48 AM | #201 |
Senior Member
Join Date: October 17, 2004
Location: Michigan
Posts: 734
|
I see maestro. Nevermind.
Thanks for the Cato link. |
November 23, 2009, 08:50 AM | #202 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
I see the CATO brief cites David Uphams "Note," pg 23.
|
November 23, 2009, 02:17 PM | #203 | |
Staff
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 13,059
|
Pistolero, that link is for their brief from the petition stage. Today's brief is here.
Academics for the Second Amendment have theirs up here, authored by Olson, Hardy and Cramer. They trace the evolution of the 2A from its 18th century roots to its Reconstruction-era interpretations. The Congressional brief is here. 57 Senators (19 Democrats) and 257 Representatives signed on in total. There are no great legal insights we haven't heard in any other briefs, but it does mention an interesting historical point: Quote:
Most of the Senate signatures come from gun-friendly states, but several Representatives from New Jersey and New York have signed on as well.
__________________
Sometimes it’s nice not to destroy the world for a change. --Randall Munroe Last edited by Tom Servo; November 23, 2009 at 03:38 PM. |
|
November 23, 2009, 04:25 PM | #204 | |
Staff
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 13,059
|
The Institute for Justice has their brief up.
Their theme of their brief is that the 14th Amendment was meant to give teeth to the antislavery protections of the 13th, and that the marginalization of the 14th allowed conditions of "constructive servitude" to exist. They ask that the Court look at the whole intent of the Privileges or Immunities clause, and not simply use it only as a mechanism for incorporation: Quote:
__________________
Sometimes it’s nice not to destroy the world for a change. --Randall Munroe |
|
November 23, 2009, 04:31 PM | #205 |
Staff
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 13,059
|
Dave Kopel has posted a brief in conjunction with the International Law Enforcement Educators and Trainers Association (ILEETA). The argument is summed up in the first sentence: Guns save lives.
This one isn't about the 14th Amendment at all. Rather, it's an ancillary brief written to underscore the point that firearms in the hands of citizens fulfill a useful purpose, and to rebut claims from the respondents that more lenient gun laws will result in civil disorder. The brief goes into great detail explaining why blood will not run in the streets if the Court incorporates the 2nd Amendment. Lots of charts, graphs and statistics prove the point, and it's worth noting that the information in this one will be useful long after resolution of the case at hand.
__________________
Sometimes it’s nice not to destroy the world for a change. --Randall Munroe |
November 23, 2009, 05:55 PM | #206 | |
Senior Member
Join Date: August 16, 2007
Posts: 2,153
|
Quote:
|
|
November 23, 2009, 07:14 PM | #207 |
Staff
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 13,059
|
As the day winds down, we've got a brief from the American Center for Law and Justice.
__________________
Sometimes it’s nice not to destroy the world for a change. --Randall Munroe |
November 23, 2009, 08:07 PM | #208 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Amicus Brief of 32 California Prosecuters is in.
Looking now for the Brady Center's brief (Alan Gura has said they intend to file). ETA: The Brady Campaign does have an announcement that they are filing today, but no links as of yet. Last edited by Al Norris; November 23, 2009 at 08:16 PM. Reason: new info |
November 23, 2009, 09:33 PM | #209 | |
Staff
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 13,059
|
Quote:
Curiously, there's been almost no mention from the gun-control lobby on this case. I checked Helmke's column on the Huffington Post, and there's nothing. While I was there, I did a search that had some interesting results. There are at least four dozen articles about Heller, but only one about McDonald. I'm wondering if that means what I think it does.
__________________
Sometimes it’s nice not to destroy the world for a change. --Randall Munroe |
|
November 24, 2009, 12:07 AM | #210 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
As reported on Gura's website, the Brady Campaign is filing a brief that is neither for the Petitioners nor the Respondents. Because of that, their brief was due today.
Amicus Brief CalGuns Foundation is also in. This Amicus Brief literally destroys Fairman's and Berger's work.... High time, I should think. |
November 24, 2009, 12:24 AM | #211 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Just checked back to the ChicagoGunCase site and on the Case Filings page, there has been a major update, since I checked last at 7pm. Go to the link above to download any or all of the briefs.
Here are the case filings: Merits Stage
|
November 24, 2009, 01:00 AM | #212 | |
Senior Member
Join Date: June 5, 2004
Posts: 611
|
Quote:
|
|
November 24, 2009, 01:09 AM | #213 | |||||
Staff
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 13,059
|
So, they got theirs up just under the wire. The Brady Campaign brief is pretty much exactly what I expected.
The whole thing is about "reasonable regulation" and "public interest." Without weighing in on incorporation, they simply beg for a standard of review that's as close to rational basis as they can get without calling it such. They dig pretty deep (Heffron v. International Society for Krishna Consciousness, Inc.?) to prove that strict scrutiny doesn't usually apply across the board for civil liberties, and they seem to encourage such a situation. If anything, the Left needs to tread very carefully when praising infringements on 1st and 4th Amendment rights. Their usual arrogance comes through on page 5: Quote:
Quote:
The NAACP brief argues against revisiting the Privileges or Immunities clause at all, claiming, Quote:
Regarding Slaughterhouse and Cruikshank, Quote:
Quote:
If this was 1968 or so, do you really think the NAACP would be so content to forestall a rehearing of the 14th Amendment?
__________________
Sometimes it’s nice not to destroy the world for a change. --Randall Munroe Last edited by Tom Servo; November 24, 2009 at 01:33 AM. |
|||||
November 24, 2009, 07:50 AM | #214 | ||
member
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 8,462
|
The NAACP is arguing FOR the Slaughterhouse interpretation of the 14th Amendment and against the Privileges and Immunities clause being applied as it was intended by Bingham?
Wow, talk about ironic - especially given the topic at hand. I guess Lochner returning from the dead scares the NAACP leadership even more than Cruikshank being upheld. Quote:
I also like the cowardly way that both opposing amici framed their briefs as "supporting neither party" when they are actually opposition briefs. If you are going to try and deny people what the Supreme Court has stated is a fundamental, individual, civil right embodied in our Bill of Rights, then at least have the nerve to say so. This business about "in support of neither party" is just to give Brady soundbite cover to reporters who are too ignorant to know better. ETA: OK, to be fair to Brady, they do not like the idea of incorporating the Second; but they really and truly did not oppose it. They just proposed (once again) that the standard of review for protecting it be watered down to the point that it means nothing as a fundamental civil right. I still regard that as quite cowardly; but you can make the case that it isn't opposition to the basic question in the case. As for NAACP, well it is clear they are no fans of the Second Amendment either; but their brief is really more a "Don't upset the applecart" brief. The NAACP is less concerned about the Second Amendment and more concerned about having a new approach (P&I) to the 14th Amendment put past precedent at risk. they don't really address how P&I is going to do that; they mostly just plead with the Supreme Court not to change things dramatically and helpfully point out that we can resolve this case without ever revisiting the P&I clause. They do not oppose P&I per se. They are just worried about having a nice, well-understood approach to civil rights shaken up by actually giving the 14th Amendment its stated intent. Quote:
Last edited by Bartholomew Roberts; November 24, 2009 at 09:52 AM. Reason: Modify my earlier comments |
||
November 24, 2009, 09:02 AM | #215 |
Senior Member
Join Date: February 9, 2002
Posts: 1,936
|
Wow, the NAACP is in a two step panic over P & I vs Due Process. That's got to be the most ironic thing I have ever seen.
|
November 24, 2009, 09:45 AM | #216 |
member
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 8,462
|
Well, that is pretty much a slam-dunk for incorporation of the Second through either the Due Process clause or the P&I clause.
Note that nobody even tried to argue anything else - in fact, the Brady Campaign, who has pretty much been at the forefront of legal thinking on ways to subvert the Second Amendment, basically acknowledged that the Second Amendment applied to the States and moved right to the "What standard of review should apply?" question. To me, there is no question that the Second is going to be incorporated. You might ask "If the case is such a slam dunk, how come we are sitting here with two "no incorporation" rulings and a third vacated ruling?" Of course, the trick here was that neither of the "no incorporation" rulings actually did a due process analysis as required. Instead they relied on Cruikshank rather than risk being controversial. The Ninth Circuit applied the due process analysis used for other civil rights and reached the conclusion that the Second was incorporated. It was only vacated when it became apparent the Supreme Court was going to hear the case. I'm interested in seeing the opposition brief; because they literally have no leg to stand on. I wonder if they will abandon the question entirely as Brady did and go straight to the standard of review? The law is about as black and white here as it ever gets in a constitutional law case making it to the Supreme Court. It will be instructive to see which Justices try to claim it is actually gray. Not to mention the weird angle this case is taking with regards to the P&I clause. This has stopped being about the Second Amendment really. The Second Amendment is going to be incorporated. This is really about building a foundation to undo the New Deal (ironic considering we are in the middle of the New New Deal). Realistically though, I don't see that happening. I am thinking 1-2 votes at most for the P&I clause, although given all the weird confluences of law and politics here, who knows? That is really just a WAG. I never thought I would see the NAACP arguing against the P&I clause being interpreted in the manner Bingham described; but there you go. |
November 24, 2009, 10:50 AM | #217 | |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
You'll perhaps forgive me, but didn't the Brady Campaign make a procedural faux pas?
In all the other briefs, if they were taking an approach that differed slightly from the Question Presented, they never mentioned the Question at all. That was assumed, in their briefs. Here however, the Brady's pose an entirely new question that the Court never agreed to ask, let alone answer. In all of the cases I have read since 2004, I have never seen an amicus brief pose to the Court a different Question, unless it was at Cert stage. Certainly, it hasn't happened at the Merits stage. |
|
November 24, 2009, 11:27 AM | #218 |
member
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 8,462
|
I am not up on SCOTUS procedure; but I believe Amicus briefs have to comply with Rule 24, which says: "the brief may not raise additional questions or change the substance of the questions already presented."
The Court can still consider a question evident from the record and within its jurisdiction to decide though. Still, not exactly a great way to start off IMO. |
November 24, 2009, 12:01 PM | #219 | ||
Staff
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 13,059
|
Quote:
Quote:
__________________
Sometimes it’s nice not to destroy the world for a change. --Randall Munroe |
||
November 24, 2009, 04:56 PM | #220 |
member
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 8,462
|
Hmmm, I hope Brady didn't pay money for that brief. In addition to presuming to tell the majority in Heller what their dicta about "presumptively lawful" meant with regards to standard of review, they played spent a lot of time opining without even trying to back up their comment with a cite - which says a lot given the amount of half-assed, debunked research they do cite.
I like how they cited research concluding that higher firearms ownership = higher gun crime without mentioning that the author used Guns & Ammo subscriptions as a proxy for gun ownership. Then of course a host of the usual suspects cited.... Bogus, Saul Cornell, Kellerman. I'm glad there was the ILEETA brief and other briefs from our side challenging some of this - though those briefs wisely focused on Chicago instead of being more general as the Brady brief was. Overall, I'm glad Brady didn't do a better job. They didn't have much to work with but they sure did manage to make a mess of what they had. |
November 24, 2009, 05:07 PM | #221 |
member
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 8,462
|
As far as votes for P&I goes, I think Orin Kerr had a good point that none of the left leaning Justices are interested in reviving Lochner. Like I said though, just a WAG on my part. There are so many angles to revisiting P&I.
|
November 24, 2009, 10:26 PM | #222 | ||
Staff
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 13,059
|
Quote:
Of course, they're expected to throw their hat in the ring, so they made a half-hearted attempt. So half-hearted, in fact, that they don't even address the primary question presented. I find the whole situation particularly amusing, given that I met a couple of those guys back in the 1990's, and they were insufferably arrogant back then. I'm feeling a certain sort of schadenfreude watching them fumble for any sort of relevance now. The count stands at 30 briefs for the petitioners, 2 (dubiously) unaligned, and 0 for respondents. Things have got to be feeling fairly desperate around Oak Park these days. Quote:
__________________
Sometimes it’s nice not to destroy the world for a change. --Randall Munroe |
||
November 25, 2009, 06:58 AM | #223 |
Senior Member
Join Date: February 9, 2002
Posts: 1,936
|
Dubiously unaligned is right.
I thought the NAACP one could at least plausibly claim to be unaligned, though it does nothing but oppose Gura's central point about P&I. The Brady one was clearly in support of one side and afraid to admit it. It will embarrass part of the Supreme Court and irritate another part, IMO. Incorporation does appear inevitable at this point, probably the due process flavor because while the NAACP supporting racist Reconstruction Era precedents is certainly ironic, they do articulate some reasons for that approach that seem reasonable. |
November 25, 2009, 08:15 AM | #224 |
Senior Member
Join Date: October 17, 2004
Location: Michigan
Posts: 734
|
That's a very good point Al.
I have never seen a formal brief start with a question that wasn't what the SCOTUS stated was being addressed in the first place. That is weird. What happens now? Does the SCOTUS just reject it? I mean, can I now file a formal brief saying, "whether automatic weapons can be outlawed under reasonable scrutiny?" ETA: And guys/gals, Al is correct, that is how the question is framed in the Brady brief. http://www.chicagoguncase.com/wp-con...521acbrady.pdf Last edited by RDak; November 25, 2009 at 08:21 AM. |
November 25, 2009, 08:54 AM | #225 | |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
I like the way everallm put it (this post over at thr.us)
Quote:
|
|
|
|